Today in the Community: December 13, 2011

Posted Tue, December 13th, 2011 10:25 am by Kevin Russell

Today in the Community we continue to disucss Sackett v. EPA, specifically: to what extent does the Constitution limit Congress’s authority to address environmental problems through legislation that limits the rights of private property owners? What provisions are implicated and what do they require?

We look forward to hearing from you. Some great comments from yesterday are below the jump.

Anthony Caso – 1 Promoted Comment

Representing the National Federation of Independent Business Small Business Legal Center and the Center for Constitutional Jurisprudence, I filed an amicus brief in support of the property owners in this case arguing that they are entitled to judicial review of Administrative Compliance Order. To resolve the question, the Court must decide whether the order is “final” and if so whether the Clean Water Act impliedly precludes judicial review.

In the Supreme Court, EPA is arguing that the order imposes no substantive legal obligations (beyond those already imposed by the Clean Water Act), but instead merely “‘expresse[s] [the agency’s] view of what the law requires.’” Respondent’s Brief at 28 (citing Fairbanks N. Star Borough v. United States Army Corps of Engineers, 543 F.3d 586, 594 (9th Cir. 2008)). That interpretation, however, is in conflict with the language of the order itself.

Both the order and the cover letter from the agency stated that violation of the order would subject the Sacketts to civil penalties of up to $32,500 per day and administrative penalties of $11,000 per day for each violation.

The order made a finding that the Sacketts placed fill dirt on their property near Priest Lake in Idaho and that the property included wetlands. The order requires the Sacketts to remove the fill dirt (to a location approved by EPA), restore the property to its original topographical condition, and provide EPA free access to the property. The order also contemplates a requirement for the Sacketts to plant “wetlands” vegetation on the property.

So, is this a “final” agency action? Finality is judged by whether the action is the result of the culmination of agency proceedings and whether it has legal consequences. The compliance order in this case purports to make “findings and conclusions” which result in an “order.” There are no other administrative procedures available to the Sacketts. Thus, the order itself claims to be a culmination of agency proceedings. Similarly, the order itself claims to have legal consequences. As noted in the order, violation of the order can result in civil penalties of up to $32,500 per day (just under $1 million per month). The order is a final agency action.

The next question then is whether review Congress precluded review of these orders. Section 704 of the Administrative Procedure Act establishes a presumption that judicial review of final agency actions is available unless the statute precludes review. Nothing in the Clean Water Act expressly precludes review of compliance orders. EPA argues instead that the Congress instead precluded review by implication.

Here, EPA relies on Block v. Community Nutrition Institute, 467 U.S. 340 (1980), in which the Court held that preclusion of judicial review could be implied where an intent to preclude was “fairly discernable” in the text of the statute. A few years later, however, the Supreme Court ruled in Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), that courts should not imply preclusion of review in the absence of “clear and convincing evidence” of such an intent by Congress. Significantly, the Court in Bowen specifically rejected the argument that if Congress provided for review in some parts of the statute, but was silent in others, that such silence is sufficient to preclude review. Thus, silence of the Clean Water Act on the question of judicial review of Administrative Compliance Order is not a sufficient basis to preclude judicial review.

Given the strong presumption in favor of judicial review in the Administrative Procedure Act and the legal consequences for violation of the order, the Court should find that judicial review is available in this case.

The problem in this area is that lower courts still resort to the analysis in Block, often without reference to the decision in Bowen. The Court in this case can provide some much needed guidance to the lower courts on the question of implied preclusion of judicial review.

William Maurer – 1 Promoted Comment

For too long, federal, state and local governmental bodies have looked at the regulation of private property as an area where any exercise of power, regardless of how unfair, burdensome, or capricious, is fair game. From failing to pay fair compensation for regulatory takings, to condemning private property to transfer to private entities, to creating procedures where the property owner is always at a severe disadvantage, the government has viewed owners as an inconvenience standing in its way and not individuals entitled to be treated with dignity and respect by the people who purportedly represent them.

Sackett v. EPA is the latest example. The EPA’s stance in the case is that it may command immediate, severe and significant financial harm to a property owner without providing fair and timely judicial review. This stance is not only inconsistent with the commands of the Due Process Clause—which was designed to prevent arbitrary and unreviewable governmental action—it is repugnant to eight centuries of Anglo-American legal tradition. The Magna Carta, Parliament, Lord Coke, Blackstone, and the drafters of the U.S. Constitution and the Northwest Ordinance all viewed procedural fairness and a meaningful opportunity to be heard as a vital weapon against governmental abuse. Nonetheless, the EPA believes that twenty-first-century American property owners may be constitutionally treated less humanely, and offered fewer procedural rights, than medieval Englishmen.

The EPA avoids this conclusion by claiming that Administrative Compliance Orders are “pre-enforcement” and that its “order” was really a suggestion that would not be enforced until the EPA went to court. The order at issue commands the property owner to comply with various statutory requirements within a specific timeline with mandatory language. It mandates that the Sacketts undertake expensive and burdensome changes to their land or face penalties of up to $37,500 a day and even criminal penalties. Calling something “pre-enforcement” does not make it so and an order that gives one the choice of spending thousands or face financial ruin or criminal charges is nothing if not active enforcement.

The order at issue in Sackett mandated that the property owners turn their property into a nature preserve but did not allow them to challenge this conclusion or even whether the government has jurisdiction over their property until many months, and thousands of dollars, later. It is difficult to conceive of a policy so inconsistent with the basic tenets of Due Process and more capable of being abused. One hopes that the Supreme Court will see Administrative Compliance Orders for what they are—a mechanism to force Americans to do what the government wants without providing them meaningful access to judicial review at a time when that review can actually make a difference.

Disucssion: Confrintation Clause

Topic: Crawford v. Washington

Pamela Metzger – 1 Promoted Comment

The originalism debate aired in Crawford and its progeny is an important one for the future of constitutional criminal procedure. For scholars, Crawford continues to spark fascinating inquiries about the original public understanding of the Confrontation Clause. For criminal defendants, Crawford has restored an essential adversarial entitlement.

However, scholars and practitioners of constitutional criminal procedure ignore, at their peril, the larger implications of the originalist criminal procedure jurisprudence that Crawford portends. As Aaron suggests above, in a post-Crawford world, we must carefully consider whether the Court’s commitment to Confrontation Clause originalism threatens good or ill for the larger panoply of constitutional criminal procedure rights. As I explain below, I have grave concerns that an originalist approach to criminal procedure imperils many of our most fundamental expectations about modern criminal process.

Most contemporary originalists advocate the “original public meaning” approach to the constitution and its amendments. In Crawford, this originalist analysis returned the Confrontation Clause from the hinterlands of evidence law to the mainland of constitutional criminal procedure. The result was been an important restoration of the constitutional commitment to a criminal procedure that has a profoundly adversarial structure. However, a rigid application of originalism to constitutional criminal procedure risks a reversal of other constitutional protections that are essential to adversariness in modern criminal procedure. (For purposes of this comment, I am addressing the “exclusive originalism” that views originalism as the sole legitimate means of constitutional interpretation.) Carried to its logical conclusion, this rigid constitutional originalism may demand the reversal of even the most well-established constitutional criminal procedure doctrines – even those that are more central to guarantees of adversarial process.

For example, an originalist interpretation of the Sixth Amendment right to counsel would justify overturning the Sixth Amendment appointed-counsel guarantee that was established in Gideon v. Wainwright. After all, to the Framers and their contemporaries, the Sixth Amendment meant only that any criminal defendant who could secure counsel had a right to appear through that counsel. Certainly Crawford demonstrates that the Court is prepared to sacrifice precedent to principle when the principle at issue is a Sixth Amendment guarantee. Similarly, Professor Donald Dripps has argued that originalist commitment to Crawford’s confrontation right, coupled with an originalist understanding of the right counsel might mean that a pro se defendant’s cross-examination of witnesses at a preliminary hearing satisfies the counsel and confrontation guarantees. Thus I am deeply skeptical about originalism’s capacity to produce rules of constitutional criminal procedure that continue to protect structural adversariness.

I do not which to underplay the very important ways in which the Court’s confrontation originalism has refocused constitutional criminal procedure on the Framer’s intentional creation of an adversarial structure. Thus far, in Crawford and its progeny, the reversal of the Roberts precedent has indeed strengthened the adversarial structure of criminal procedure. And, as I have written elsewhere, I firmly believe that the structural imperatives of confrontation are essential elements of an adversary criminal procedure.

Still, originalism may prove to be a double-edged sword for promoting an adversarial architecture of criminal procedure. Those of who favor an increased focus upon the adversarial architecture of criminal procedure cannot afford to adopt originalism as a means to an adversarial ends. True, the current Supreme Court’s originalism has produced a Confrontation Clause outcome that advances core structural components of an adversarial process. However, we ignore, at our peril, the need for a more nuanced, less rigid approach, to constitutional criminal procedure.

Bernard Freamon – 1 Promoted Comment

It is a pleasure to weigh in on a topic that has caused many of my evidence students to ask whether they had signed up for a reprise of constitutional law rather than evidence. The topic is “originalism” and the primary question for us today is whether the Crawford decision, and its rather troublesome progeny, can tell us anything about originalism as a mode of constitutional interpretation. I would suggest that the Crawford line of cases, particularly the very recent cases–Melendez-Diaz, Bryant, Bullcoming and now Williams–profoundly demonstrate the difficulties engendered by application of what Erwin Chemerinsky has called “strict” originalism, that is, a mode of interpretation requiring the Court to follow the literal text and “the specific intent” of its drafters. Justice Scalia, in his opinion in Crawford, sought to be “strictly” originalist in his interpretation of the Confrontation Clause. His version of “strict” originalism seeks to apply the original meaning of the constitutional clause rather than simply the drafters intent and, under the facts of Crawford, this was fairly easy to do. If the out of court evidence is “testimonial,” it must be rejected unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine its author or he is deemed to have forfeited that right. The result was wonderful for criminal defendants and dismaying for prosecutors, but nonetheless understandable because all Confrontation clause analyses involving unavailable declarants would turn on (1) whether the out-of-court statement was “testimonial” and (2) whether the defendant had a prior opportunity to cross-examine the declarant. Easy, bright-line rules to follow. The powerful paradigm presented by the historical example of Sir Walter Raleigh carried the day, even though the Court did not define “testimonial.” The subsequent cases, particularly the cases involving scientific reports and forensic analyses, but also cases like Davis and Bryant, show that “strict” originalism is not always satisfactory when courts are required to interpret the constitution in order to adjudicate a dispute involving modes of evidence and criminal procedure that just simply did not exist at the time of the framing of the 6th amendement. This is the larger problem with “strict” or even “purposive” originalism and the Crawford line of cases graphically show that. Critics of “strict” originalism have pointed out that the “strict” originalists would not have permitted the Court to outlaw racial segregation in the District of Columbia schools because those schools were segregated when the Equal Protection Clause was adopted. It is only because of modern sensibilities that we want to outlaw segregation, they argue, and not because of the meaning of the words of the clause, as understood by the framers. There is an eerie similarity between the segregation issue and the problem of scientific advances in criminal procedure. Several justices have remarked that it will now require 10 scientific witnesses to prove a DNA match in every criminal case if we want to “strictly” apply the Confrontation Clause.

As one who actually firmly supports the principle established in Crawford, this state of affairs causes me some despair but I am loathe to advocate a return to the morass created by Roberts and it seems to me that the hard problems will just have to be sorted out using the “testimoniality” formulation as the Court goes forward. Because the problem is hard does not mean we should abandon it. I only have some preliminary thoughts on this but here goes: (1) There seem to be two strands of “testimonial” evidence emerging in the cases, one set involving viva voce evidence of an out-of-court, oftentimes eyewitness, declarant and the other involving scientific and forensic testing that is interpreted by an expert who is far from the crime scene. In the first category, Crawford can still be consistently applied without much difficulty. By this view, the Bryant decision is probably wrong. In the second category, Crawford’s third formulation, involving statements “that would lead an objective witness to reasonably believe that the statement would be avaialble for later use at trial” would seem to also cover reports by scientific and forensic examiners and it should still be applied, or their procedures changed, so we don’t have a parade of 10 witnesses. Otherwise we will have the specter of a continental procedure in the scientific cases and I don’t think we want that in our system; (2) The existence of evidence rules permitting reliance on expert reports of a type “reasonably relied upon” by experts in the field does not change any of this. The originalists, and even non-originalist constitutional theorists all acknowledge that the Confrontation Clause is about higher principles and the purposes behind that evidence rule simply do not cut the mustard when we are talking about bedrock criminal procedure norms; (2) Jack Balkin has argued that originalism and the notion of a “living constitution” are compatible with each other but he seems to suggest room for a larger and more inclusive (“moderate”) originalism, one that remains true to the framers purposes and desires but accomodates modern practices. I agree with that and I think that the Crawford line of cases will ultimately follow that path. The constitutional thinkers who have discussed originalism have concentrated on the big and heavy political disputes (segregation, commerce, speech, arms) and largely ignored criminal procedure. It would probably be fruitful to look at other aspects of criminal procedure in the constitutional structure and caselaw (search and seizure and self-incrimination come to mind) to see whether originalism has played a role in reaching interpretive understandings and, if so, how. This might help us with the Confrontation Clause jurisprudence but, alas, that search will have to be for another day.

David Schwartz – 1 Promoted Comment

The vigorous debates over the extent of “testimonial” hearsay under Crawford is valuable. What puzzles me is the handwringing about the purported “indeterminacy” of that concept, as if the imprecise boundary of “testimonial” is more problematic than the fuzzy edge of any other legal rule – such as “reliable” hearsay under a “firmly rooted” exception. All legal rules are uncertain at the margins, and Crawford provides more certainty than Roberts. We now know, for instance, that station-house confessions by now-unavailable co-defendants are inadmissible against the defendant. Period. Crawford makes clear why that is an easy case for Confrontation Clause exclusion; yet under the pre-Crawford cases, many judges and justices were still trying to fudge those confessions into evidence as “against penal interest” statements under 804(b)(3).

I think Crawford is Justice Scalia’s greatest opinion (I would say his only great opinion), and if there is a case to be made for originalism, it has to use Crawford as exhibit A. In a closely reasoned and convincing historical analysis, Justice Scalia showed the legal context in which the 6th Amendment was drafted and persuasively showed the kinds of problems the framers intended to reach. Scalia, who has no loved for criminal defendants, reaches a principled result by following where the analysis leads him, with a rigor unusual for most justices most of the time, originalists included.

What makes Crawford a good case for originalism is that it is not only more coherent than the approach it replaces; but it also stands as an instance in which the original intent is more protective of the rights in question than a pragmatic, abstract interpretation of the right. Under Roberts’ mushy vision of why we even have a Confrontation Clause, untethered to historical understandings, the right was far more subject to erosion from the relentless pressure of the governmental interest in crime control. I don’t believe originalism works well in all cases of constitutional interpretation. But it is worth thinking about why it works so well in Crawford.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.